Rokas Karpavicius v. R (New Zealand) [2002] UKPC 59 (11 November 2002) 
ADVANCE COPY

	Privy Council Appeal No. 14 of 2002

Rokas Karpavicius	Appellant
	v.
The Queen	Respondent

	FROM

	THE COURT OF APPEAL OF NEW ZEALAND
	---------------

	JUDGMENT OF THE LORDS OF THE JUDICIAL
	COMMITTEE OF THE PRIVY COUNCIL,
Delivered the
11th November 2002
	------------------

	Present at the hearing:-
			Lord Nicholls of Birkenhead
			Lord Steyn
			Lord Hutton
			Lord Walker of Gestingthorpe
			The Rt. Hon. Justice Gault
	 	               [Delivered by Lord Steyn]
	------------------

The Question of Law.
1. 	On appeal from a decision of the Court of Appeal of New Zealand an important question on the correct interpretation of the Misuse of Drugs Act 1975 arises: R v Karpavicius [2001]  3 NZLR 41.  The Act makes provision for the prevention of misuse of drugs.  The objective was to establish as far as possible a comprehensive system of control of drugs.  For this purpose the legislature divided drugs in three classes in descending order of seriousness, viz Class A (e.g. heroin), Class B (e.g. morphine) and Class C (e.g. cannabis):  see the First, Second and Third Schedules of the Act.  Offences under the Act are defined with reference to the various classes of drugs, and penalties are prescribed taking into account the relative dangerousness of the classes of drugs.  At the core of the system are section 6, which prohibits dealing in controlled drugs, and section 7, which prohibits possession and use of controlled drugs.  This appeal is concerned with section 6.

2. 	So far as it is material section 6 provides as follows:
“(1) 	... no person shall – 

(a)	Import into or export from New Zealand any controlled drug, other than a controlled drug specified or described in Part VI of the Third Schedule to this Act; or

(b)	Produce or manufacture any controlled drug; or

(c)	Supply or administer, or offer to supply or administer, any Class A controlled drug or Class B controlled drug to any other person, or otherwise deal in any such controlled drug; or

(d)	Supply or administer, or offer to supply or administer, any Class C controlled drug to a person under 18 years of age; or

(e)	Sell, or offer to sell, any Class C controlled drug to a person of or over 18 years of age; or 

(f)	Have any controlled drug in his possession for any of the purposes set out in paragraphs (c), (d), or (e) of this subsection.

(2)	Every person who contravenes subsection (1) of this section commits an offence against this Act and is liable on conviction on indictment to –

(a)	Imprisonment for life where a Class A controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:

(b)	Imprisonment for a term not exceeding 14 years where paragraph (a) of this subsection does not apply but a Class B controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:

(c)	Imprisonment for a term not exceeding 8 years in any other case.

(2A)	Every person who conspires with any other person to commit an offence against subsection (1) of this section commits an offence against this Act and is liable on conviction on indictment to imprisonment for a term –

(a)	Not exceeding 14 years where a Class A controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:

(b)	Not exceeding 10 years where paragraph (a) of this subsection does not apply but a Class B controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:

(c)	Not exceeding 7 years in any other case.”

The focus of the present appeal is on subsection (2A) of section 6.

3. 	The question of interpretation is whether the words “in any other case” in paragraph (c) of subsection (2A) cover only cases involving Class C drugs or whether they cover cases involving Class C drugs as well as other cases which cannot be prosecuted under paragraphs (a) or (b) of subsection (2A).  While cases in the latter category would be comparatively rare, the appeal before the Privy Council relates to one such case, viz where it is established that the drugs involved were either Class A or Class B drugs but where there is no proof to the requisite standard of which class of drugs were involved.  Another example would be where there is proof of a conspiracy involving drugs but it is unknown whether the subject matter of the conspiracy was drugs in Class A, Class B or Class C or in a combination of them.

The Forensic History.
4. 	In summary the nature of the prosecution case was as follows. During 1998 and 1999 an undercover police officer discussed with the appellant (Karpavicius) the supply of a quantity of a drug which the officer believed was cocaine but which was never identified.  A group of four men were involved in the proposed drugs deal.  The appellant was the leader of the group.  The transaction was never completed because one of the co-conspirators lost the money.  The police investigations resulted in a charge against the four men.  The first indictment alleged that between 1 November 1998 and 12 August 1999 the appellant conspired with Blakie, Pearson and Martin to import into New Zealand the Class A controlled drug cocaine.

5. 	On 31 May 2000 the Appellant and his co-accused appeared in the High Court at Auckland and were duly arraigned.  They entered pleas of not guilty to the first indictment.  The appellant and his co-accused subsequently applied to the High Court for an order that they be discharged on the ground that there was insufficient evidence to establish that there was a conspiracy to import the class of drugs specified in the first indictment. Anderson J heard the application.  In a judgment dated 12 September 2000 he ruled that there was an adequate evidential basis for a finding by a jury that the appellant participated in a conspiracy to import a controlled drug, being either a Class A controlled drug or a Class B controlled drug.  However he concluded that the evidence was insufficient to support a conviction on the indictment, which simply alleged a conspiracy to import a Class A controlled drug.  The appellant and his co-accused were entitled to be discharged.  Nevertheless the court declined to make such an order until the Crown had an opportunity to amend the indictment.  On 12 September 2000 the Crown applied to amend the indictment.  This indictment alleged that the appellant conspired, together with his co-accused, to import into New Zealand a Class A controlled drug, or in the alternative (by way of a separate count) a Class B controlled drug, contrary to section 6(2A)(a) or 6(2A)(b) of the Act.  On 14 September 2000 Anderson J granted the respondent’s application to amend the indictment.  The court then ordered that a jury be empanelled, that the jury be directed to acquit the appellant and his co-accused, and that a question of law be reserved for the Court of Appeal. This procedure was adopted following submissions by the Crown on the basis that it would provide a method of appealing against the decision of the High Court from which there generally lies no right of appeal by an accused or the Crown.  The judgment recorded that the interests of justice required this course of action to be taken. On 2 October 2000 the appellant and his co-accused were arraigned and pleaded not guilty to both counts in the second indictment.  The Crown offered no evidence and Chambers J directed the jury to return verdicts of not guilty.  The jury complied with this direction and following the entering of not guilty verdicts the appellant and his co-accused were discharged, the court recording that the effect of the discharge was an acquittal, but that the accused could be re-arrested if the Court of Appeal ordered a new trial.  The court then formally reserved a question of law for the opinion of the Court of Appeal under section 380 of the Crimes Act 1961.  The question of law read as follows:
“Where a person is tried on an indictment alleging alternative counts of conspiring to import a Class A controlled drug or conspiring to import a Class B controlled drug, and where there is evidence which, if accepted, would prove beyond reasonable doubt that the person has conspired to import either a Class A controlled drug or a Class B controlled drug but the evidence is insufficient to prove which class, may that person properly be convicted on either count in the indictment?”

The appeal proceeded by way of case stated, and was heard before five members of the Court of Appeal on the basis that the question of law reserved involved an important issue of principle.

The proceedings in the Court of Appeal.
6. 	In advance of the hearing the Court of Appeal invited counsel to consider and address a possible new argument namely that if the evidence did not satisfy section 6(2A)(a) or (b), it may nevertheless satisfy section 6(2A)(c), i.e. it may be covered by the words “in any other case”.  This question became the principal terrain of debate on the appeal.

7. 	While the forensic background has been explained it is necessary to make clear that there was no issue in the Court of Appeal or before their Lordships about the propriety of the procedure adopted.

The Judgment of the Court of Appeal.
8. 	In delivering the unanimous judgment of the Court of Appeal [2001] 3 NZLR 41 Richardson P examined the structure and scheme of the legislation.  He concluded at p 47 that the legislation, and section 6(2A) was “intended to cover the field, leaving no gaps”.  If the words “in any other case” were confined to Class C drugs there would be a gap.  The Court of Appeal concluded that an interpretation should be preferred which would leave no such gap.

9. 	The logical steps in the reasoning of the Court of Appeal were as follows [2001] 3 NZLR 41, 46-47:
“[21.]  ... subs (2A) contemplates that the first inquiry is whether para (a) is satisfied.  That is so ‘where a Class A controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed’.  If the answer is No, the next inquiry is under para (b), that is ‘where paragraph (a) of this subsection does not apply but a Class B controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed’.  If that answer is also in the negative, the next step is to go to para (c), which makes the penalty ‘Not exceeding 7 years in any other case’.

[22.]	On that analysis subs (2A) provides a comprehensive statement of liability for conspiracy offending in relation to controlled drugs.  It is complete in its coverage because of the successive and exhaustive steps which may be required. The answer to (a) will be in the negative where it is not proved beyond reasonable doubt that a Class A controlled drug was a controlled drug ‘in relation to which the offence was committed’.  That language and its employment in that context is necessarily directed to proof that the offence was committed and there is no justification for reading ‘was’ in any lesser sense.  Unless there is proof beyond reasonable doubt, (a) is not satisfied.  It follows that, where there is uncertainty as to whether the drug, the subject of the conspiracy agreement, was a Class A controlled drug, that uncertainty may also preclude a positive answer to the inquiry under (b), even where there is other evidence that it was a Class B controlled drug.  In that situation, and also where there is no affirmative evidence that it was a Class B controlled drug, para (c) on its face applies and the maximum penalty for the offending is seven years’ imprisonment.

[23.]	It is clear from the scheme and language of the offence – creating provisions of s6(2A) that the legislature imposed different maximum penalties depending on which one of paras (a), (b) or (c) applied.  As well, it is clear from the structure of the subsection that it intended to cover the field, leaving no gaps.  The more serious the offence in the eyes of the legislation – here the need to distinguish from the less serious drug – the higher the maximum penalty to which an offender is liable.  Section 6(4A) applying ‘where any person is convicted of an offence relating to a Class A controlled drug or a Class B controlled drug against any of paragraphs (a), (b), (c), and (f) of subsection (1)’ also reflects that focus.  And where it is not proved that the offending came within either of the more serious categories described in paras (a) and (b), para (c) is the residual provision which prescribes the lower maximum punishment for the offence which lacks those more serious features.”

The Court of Appeal quashed the acquittals and ordered a new trial.

10. 	Following the judgment of the Court of Appeal, a new indictment was preferred which reflected the reasoning of the Court of Appeal that it was competent to bring a charge under section 6(2A)(c) where it was not known in which category the drugs fell and without specifying the particular drugs.  Their Lordships have been told that a trial on such an indictment has taken place against the appellant’s alleged co-conspirators but owing to the disappearance of the appellant there has not been a trial involving him.  None of this, of course, affects the question of law to be considered by the Privy Council.

The Competing Arguments.
11. 	Counsel for the appellant reminded the Board that there are situations, admittedly rare, where it is clear that an accused has committed an offence but it is impossible to say which offence was committed e.g. theft or receiving.  Sometimes the result is that neither charge can be left to the jury: R v Bellman  [1989] 1 AC 836, at 851.  This would be a strong argument against an interpretation that where it is clear that the accused was guilty of dealing either in Class A or Class B drugs, he can be found guilty of the lesser offence: see the commentary of Professor Sir John Smith [2002] Crim LR 205, 206 on R v Taylor [2002] 1 Cr App R 519.  But that is not the interpretation which prevailed in the Court of Appeal.  The Bellman point does not affect the interpretation of section 6(2A)(c) which the Court of Appeal adopted namely that the words in section 6(2A)(c) referring to “any other case” are apt to cover Class C drugs and also embrace a residual category of cases.  The only question is whether section 6(2A)(c) covers such a residual category of cases.

12. 	Counsel for the appellant also relied on the principle laid down in R v Courtie [1984]  AC 463.  Lord Diplock observed [at 471]:
“My Lords, where it is provided by a statute that an accused person’s liability to have inflicted upon him a maximum punishment which, if the prosecution are successful in establishing the existence in his case of a particular factual ingredient, is greater than the maximum punishment that could be inflicted on him if the existence of that particular factual ingredient were not established, it seems to me to be plain beyond argument that Parliament has thereby created two distinct offences, whether the statute by which they are created does so by using language which treats them as being different species of a single genus of offence, or by using language which treats them as separate offences unrelated to one another.”  (Per Lord Diplock with whom the whole House agreed).

This principle was applied by the House in R v Shivpuri [1987] AC 1 at 15, to the importation of drugs, contrary to the section 170(1)(b) of the English Customs and Excise Management Act 1979: see the commentary by Professor Sir John Smith [2000] Crim LR 195, 196-197 on R v Leeson [2000] 1 Cr App 233.  This argument does not hit the target.  It was no part of the reasoning of the Court of Appeal, or necessarily inherent in its decision, that section 6(2A) contains only one offence with different maximum penalties.  On the contrary, on the interpretation of the Court of Appeal section 6(2A)(c) is undoubtedly a separate and distinct offence.

13. 	It is therefore necessary to examine the arguments for and against the interpretation adopted by the Court of Appeal. Concentrating on the language of section 6(2A)(c), and the use of the words “in any other case”, counsel for the appellant argued that the legislature adopted this legislative technique for the sole purpose of covering Class C drugs.  In a situation where it was unknown whether the drugs fell into Class A (for which the penalty is a maximum 14 years’ imprisonment) or Class B (with a maximum of 10 years’ imprisonment), counsel was able to point to the anomaly on the Court of Appeal’s interpretation that the maximum sentence under section 6(2A)(c) was 7 years whereas on the stated hypothesis one would have expected it to be 10 years. There is some logical force in the argument.  On the other hand, if one considers a case of dealing in controlled drugs, but it is not known whether they were within Class A, Class B or Class C, or a combination of them, there is no such anomaly.  Having recited the argument, it is fair to say that the point is not of great weight.

14. 	Counsel submitted that the Court of Appeal’s interpretation represented a rather elliptical way of creating by section 6(2A)(c), additionally to coverage of Class C drugs, a residual category of cases not covered elsewhere.  Linguistically, there may be some merit in this point.  On the other hand, against it one is entitled to ask why, if the legislature wished section 6(2A)(c) only to apply to Class C drugs, it did not adopt the natural and obvious technique of making express reference in paragraph (c) to Class C drugs. There is no convincing answer to this point.

15. 	Their Lordships are content to assume that linguistically the arguments are finely balanced.  It may be right to conclude that on purely textual view the words “in any other case” are capable of bearing either the interpretation put forward by counsel for the appellant or the interpretation adopted by the Court of Appeal, which before the Privy Council was supported by the prosecution. In a more literalist age it may have been said that the words of section 6(2A)(c) are capable of bearing either a wide and narrow meaning and that the fact that a criminal statute is involved requires the narrower interpretation to be adopted.  Nowadays an approach concentrating on the purpose of the statutory provision is generally to be preferred: Cross, Statutory Interpretation, 1995, 3rd ed, 172-175; Ashworth, Principles of Criminal Law, 1999, 3rd ed, 80-81.  This is reinforced by section 5(1) of the Interpretation Act 1999 [New Zealand] which provides that the meaning of an enactment must be ascertained from its text and in the light of its purpose.

16. 	The reasoning of the Court of Appeal has the virtue that it enquires into the circumstances in which the legislature used the words “in any other case”, and what the object was which the legislature had in mind.  Given the scheme and structure of the legislation it is to be inferred that the legislature aimed to create a comprehensive system of control of drugs with no obvious gap. But, as already pointed out, on the appellant’s interpretation there are significant gaps, resulting in the spectre of the acquittal of criminals who undoubtedly dealt in controlled drugs.  An interpretation which requires the guilty to go free tends to bring the law into disrepute and to undermine public confidence in the administration of justice.  Such a result is avoidable in this case by interpreting the words “in any other case” in a sense which enables section 6(2A)(c) to operate additionally as a residual category. Such an interpretation ascribes to the words, in their context, a perfectly natural meaning.  And it is better suited to the purposes and policies underlying the legislation than the narrower interpretation.

17. 	Their Lordships are satisfied that the reasoning of the Court of Appeal was sound.  

Conclusion.
18. 	Their Lordships will humbly advise Her Majesty that the appeal against the decision of the Court of Appeal should be dismissed.